They put out my picture with silence
‘cause my identity by itself causes violenceEazy-E
Late Saturday night, police in Hammond, Indiana, shut down Craze Fest, a hip-hop festival, when Chief Keef’s hologram appeared on stage. Keef’s inability to appear in the area in virtual form has drawn national attention after City Hall leaned on Redmoon Theater to cancel his hologram’s planned Chicago appearance because of a “significant public safety risk.”
It’s something of a novelty—resisting the appearance of a hologram. Chief Keef himself has had concerts dumped by municipalities without generating as much heat; around this time last year Cicero and Harvey both shut down planned shows. The Harvey mayor’s spokesman released a statement at the time:
Four years ago the rapper held a concert in neighboring Markham. Gunshots were fired and one person was killed. The rapper has written songs that have led to death threats against his life in southern Cook County. The Mayor’s top priority is to protect the citizens of Harvey against any potential threat to public safety. Harvey Police will be on high alert this coming weekend. We stand united with the City of Chicago and the Town of Cicero in protecting our citizens against the threat of violence as it relates to Chief Keef.
But it didn’t involve a hologram or Rahm Emanuel, so it didn’t rise to the level of national news. This time around, Keef’s quashing made the rounds, and First Amendment scholar Eugene Volokh, one the biggest law voices on the Web, thinks that Hammond may have run afoul of constitutional protections of freedom of speech: “Unless I’m missing something here, then, this is a pretty clear First Amendment violation on the part of the City of Hammond. And it seems to me that, in America, performances by controversial singers can’t be ‘basically outlawed,’ even ‘in Chicago.’”
“Basically outlawed” comes from the mayor of Hammond, who told the New York Times:
“I know nothing about Chief Keef,” [Hammond] Mayor [Thomas M.] McDermott [Jr.], 46, said. “All I’d heard was he has a lot of songs about gangs and shooting people — a history that’s anti-cop, pro-gang and pro-drug use. He’s been basically outlawed in Chicago, and we’re not going to let you circumvent Mayor Emanuel by going next door.”
This kind of language—this guy’s songs are about bad things—is sure to get the attention of a First Amendment expert like Volokh. In defending Keef, he goes back to one of the most famous Supreme Court decisions of the 20th century, one that arose from a public performance in Chicago that ended in a near riot: Terminello v. City of Chicago.
And while Mayor Rahm Emanuel’s office objected to a similar event in Chicago — which a private venue called off after these objections — on the grounds that Keef’s performance “posed a significant public safety risk” (as well as Keef being “an unacceptable role model” and his music “promot[ing] violence”), such a general safety worry can’t justify preemptively shutting down the event, either. See, e.g., Terminiello v. City of Chicago (1949), where speech was found to be constitutionally protected despite a much more concrete danger of violence.
Terminiello came about when an anti-Semitic, fascist priest was arrested for disorderly conduct after his appearance in the city led to property destruction and mob violence (1946, when the incident happened, was an even worse time to be an anti-Semitic fascist). The Supreme Court eventually threw his conviction out, with William O. Douglas writing for a 5-4 majority and employing a famous phrase (emphasis mine):
It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, Chaplinsky v. New Hampshire, supra, pp. 571-572, is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.
But Robert Jackson, who had recently been the American chief counsel at the Nuremberg Trials—and had been exposed to the worst results of fascist populism—responded with a similarly famous dissent:
This Court has gone far toward accepting the doctrine that civil liberty means the removal of all restraints from these crowds and that all local attempts to maintain order are impairments of the liberty of the citizen. The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.
And the Supreme Court would head back in that direction shortly thereafter with Feiner v. New York (written by a dissenter in Terminiello, Chief Justice Vinson): “It is one thing to say that the police cannot be used as an instrument for the suppression of unpopular views, and another to say that, when as here the speaker passes the bounds of argument or persuasion and undertakes incitement to riot, they are powerless to prevent a breach of the peace.”
And Chicago specifically has gotten away with killing a concert to “prevent a breach of the peace.” You may have read a recent piece in the Tribune about how a huge 1970 music festival in Grant Park, featuring Sly and the Family Stone—45 years ago today—turned into a riot that injured 162 people, mostly police officers. It led to the preemptive cancelation of six rock concerts—just on the basis of them being rock concerts.
The concerts’ promoters claimed their First Amendment rights had been breached. The U.S. District Court for the Northern District of Illinois disagreed:
The issuance of the permit indicates that the Park District had no existing policy to interfere with the particular form of expression represented by a rock concert. The only reason assigned in the complaint for the cancelation of plaintiff’s concert was the rock concert riot of July 27, 1970, and the claim that future concerts of this type in the Grant Park area would present a clear and present danger to the community.
There can be no deprivation of the right of free speech by the cancelation of a rock concert based solely on the good faith exercise of the police power by a public body.
This may not be a good argument, some have argued, but it is something of a similar precedent.
And as clunky as the Hammond mayor’s defense was, the city did let the festival run, even though Lil Bibby was rapping about murders and violence. So when Mayor McDermott also told the Times that “it’s not like we’re anti-rap… it’s just this specific case,” the city’s actions buttress that.
It’s unquestionably weird to ban the appearance of a hologram—as if fear of rap’s imagery came to (virtual) life. But the law and its own symbolism is also a weird medium, and Keef’s simulacrum might not have constitutional protection from it.
2 months ago